By Rachel Scharf

Law360 (August 4, 2020, 5:01 PM EDT) -- New York University says a proposed class of students doesn't deserve refunds for the university's transition to remote learning because it continued to deliver on its educational promises despite the COVID-19 pandemic.

In a motion to dismiss filed Monday, NYU told a New York federal judge that a breach of contract suit hinges on graduate student Daniel Zagoria's personal opinion that the university's remote learning was ineffective. But that argument, it says, is neither true nor basis enough to allege a violation of Zagoria's "contract" with the university — which was, at most, an agreement that he would earn academic credits and a degree in exchange for tuition.

"NYU followed through on its commitment," the university said. "Every day, teachers worked to deliver NYU's intellectually stimulating and creative learning environment in new and different ways, and students continued to benefit from those efforts. And, at the end of the semester, thousands of NYU students received education credits and earned their degrees."

Zagoria, a master's student at NYU's Schack Institute of Real Estate, sued the university on May 8 on behalf of a proposed class of NYU students, alleging that the university breached its promises to students by continuing to charge more than $2,000 per credit hour, despite offering an inferior academic experience when classes went virtual as a result of the state's pandemic shutdown.

But NYU said Zagoria can't point to any specific contract language to show his virtual learning experience didn't amount to what he paid for. It said the in-person learning opportunities Zagoria claims were included in his real estate program, including networking sessions and a trip to Europe, were never expressly promised.

"Mr. Zagoria fails to specify a particular contract with NYU that was allegedly breached, instead premising his claims on puffery and generic statements from the NYU website," NYU said. "He does not point to any language promising that classes would be held in person."

Even if Zagoria could establish that networking and travel were promised in a valid contract, the university added, NYU should be off the hook because COVID-19 shutdown made it impossible to conduct such activities.

NYU went on to say that Zagoria's attempt to extend his breached contract claims to a class action encompassing the more than 50,000 students enrolled in its various degrees and programs during the 2019-2020 school year does little to help his cause.

The marketing materials Zagoria cites for NYU's engineering, fine arts and business schools, it said, only highlight the breadth of student experiences that he doesn't have standing to represent.

"By way of example, Mr. Zagoria cannot claim that any contract with him required NYU to ensure that he participated in 'archeological excavations' in Greece," the university said, referencing claims in Zagoria's complaint that NYU promised field work experiences to its students.

NYU also noted that it's not up to a judge to decide whether its remote courses provided the same educational experience as in-person instruction. Long-settled New York precedent, it said, establishes that it is not the court's place to second-guess educators' decisions.

The university cited a New York state appellate court's 1971 ruling in Paynter v. New York University , in which NYU was told it didn't need to refund tuition to students after suspending classes in the wake of Vietnam war protests over the deployment of U.S. troops to Cambodia and the Kent State shootings.

Following that example, NYU said, the court should refrain from evaluating unique educational experiences as it is met with a similar attempt to glean refunds from the same university nearly 50 years later.

NYU is one of many colleges facing proposed class actions from students and parents seeking refunds amid nationwide virus closures. Schools ranging from private Ivy League colleges such as Harvard and Dartmouth to public universities across the country are grappling with similar lawsuits.

Last week, three public Arizona universities succeeded in getting one such suit tossed, and California's university system has asked to escape class claims targeting campus fee refunds.

Counsel for Zagoria and NYU did not immediately respond to requests for comment Tuesday.

Zagoria is represented by Azra Mehdi of The Mehdi Firm PC, Roy A. Katriel of The Katriel Law Firm and Veneeta Jaswal of The Kalfayan Law Firm.

NYU is represented by Brian S. Kaplan, Keara M. Gordon, Colleen Carey Gulliver and Rachael C. Kessler of DLA Piper.

The case is Daniel Zagoria et al. v. New York University, case number 1:20-cv-03610, in the U.S. District Court for the Southern District of New York.

--Editing by Stephen Berg.

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